Ferguson v. State

• Decision Date: 23 April 1946
• Citation: 157 Fla. 324,25 So.2d 799
• Parties: FERGUSON v. STATE.
• Court: Florida Supreme Court

25 So.2d 799

157 Fla. 324

FERGUSON v. STATE.

Florida Supreme Court

April 23, 1946

Appeal from Court of Record, Escambia County; Earnest E Mason, judge.

Merritt & Newberry, of Pensacola, for appellant.

J. Tom Watson, Atty. Gen., and Reeves Bowen, Asst. Atty. Gen., for appellee.

THOMAS, Justice.

In his first question the appellant challenges the propriety of the trial judge's denial of a motion for mistrial based on a remark supposed to have been made by the county solicitor in the course of his argument to the jury drawing attention to the failure of the defendant to testify. We would not hestitate to invoke the statutory inhibition set out in Section 918.09, Florida Statutes 1941, and F.S.A., and reverse the judgment if the record in this case disclosed comment by the prosecuting officer upon the defendant's silence. Such an incident in the trial of the present case could, however only be assumed from a motion made by appellant's attorney. Sole reference in the trial record pertinent to this situation follows: 'Argument by Mr. Caro. Mr Newberry: The defendant moves for a directed verdict--for a retrial [sic] on the ground Mr. Caro is arguing on the fact this man, the defendant, did not take the stand and testify. By the Court: Overruled and exception noted.'

The dearth of recorded information on the subject was not remedied by the ground in the unverified motion for new trial that the prosecutor had made such comment.

We would not be justified in disturbing the judgment for the reason given unless the record contained the utterance of the prosecuting officer and that utterance convinced us he had transgressed the provisions of the statute we have cited. See Pendleton v. State, 130 Fla. 774, 178 So. 835.

The statement we have quoted, made by counsel for appellant, is hardly more than a self-serving statement couched in the language of a motion, and is entirely insufficient to demonstrate any mistake on the part of the trial judge when he denied the motion. We apprehend that our view will not be very surprising to appellant, for in his brief he observes that his position with reference to this point might 'seem peculiar * * * when there is nothing in the record to show this Court that the prosecuting attorney uttered any remark * * * about the failure of the Appellant to testify' except as may be gleaned from the motion.

The remaining point in controversy is the sufficiency of the evidence to warrant a conviction of grand larceny. The defendant offered no evidence. From all the witnesses on behalf of the state, save the deputy sheriff who returned appellant to Florida from California, where he was apprehended when he attempted to pawn the stolen property, we learn the following details: A golfer left a valuable wrist watch for safe-keeping with the man in charge of the clubhouse, and teed off. Before the manager took the article from the counter, where the owner placed it, he was called to the telephone, and when he returned he too started playing golf forgetting the request to care for the property. About three hours later the loss was discovered. The defendant worked at the clubhouse, and was in it at the approximate time the watch disappeared. Many other persons frequented the place, sometimes as many as thirty or forty, most of them caddies.

Until the deputy sheriff took the witness stand, although the larceny had been proved, no testimony whatever had been adduced connecting the defendant with the actual theft. The State relied upon the story of this officer to establish the possession of the stolen property by the defendant.

There can be no doubt that the defendant had the watch with him in Los...